Home>About Council>Policy>Policy - Essential Safety Measures Maintenance
To inform Council of its responsibilities under the Building Act 1993 and in particular Part 12 of the Building Regulations 2006 which requires that the owner of a building or place of public entertainment must comply with a maintenance determination in relation to that building or place and also to assist Council in creating a policy with regard to the administration and enforcement of that regulation that is consistent with other regulatory agencies including Councils throughout Victoria.
The use of policies by Councils has long been recognized by the courts as a means of Councils determining how (due to the many responsibilities held) limited resources are to be allocated. By having an appropriate policy in place Council will reduce its exposure to risk and provide guidance to Council officers on how the regulation is to be administered.
Council is required by section 212 of the Building Act 1973 to administer and enforce specified parts of that Act and the whole of the Building Regulations 2006 within its municipal boundaries. As with many of its responsibilities, Council has the ability to determine how to carry out these functions having regard to competing obligations and its limited resources.
Division 1 of Part 12 of the Building Regulations deals specifically with the Maintenance of Essential Safety Measures in buildings and the following regulations are particularly pertinent in this deliberation:
• Regulation 1205 requires that the owner of a building or place of public entertainment constructed since 1 July 1994 must comply with a maintenance determination in relation to that building or place
• Regulation 1208 requires that such an owner of a building or place of public entertainment ensure that an annual essential safety measures report is prepared before each anniversary of the relevant anniversary date if required by a condition on an occupancy permit which includes a certificate of final inspection
• Regulation 1216 requires the owner of a building constructed before 1 July 1994 ensure that any annual essential safety measures report is available at the building or place for inspection by the municipal building surveyor or chief officer at any time on request after 24 hours notice
• Regulation 1217 requires that owner to ensure that any essential safety measure required to be provided in relation to that place is maintained in a state that enables the essential measure to fulfil its purpose and is not removed from its approved location except for maintenance or in accordance with the regulations
The level of safety is taken from Volume 1 of the Building Code of Australia with Section I relating to maintenance and the objective of that part is to ensure that people are protected from illness, injury and loss of amenity throughout the life of the building. The safety measures must be capable of performing to a standard not less than they were originally required to achieve.
The following categories are included:
• Building Fire Integrity
• Means of egress
• Fire Fighting Services – equipment
• Air handling systems
• Automatic fire detection and alarm systems
• Occupant warning systems
• Standby power supply systems
• Building clearance and fire appliances
• Other measures
• Building use and application
The obligation of owners to maintain the safety measures and retain records of the maintenance has been in force for a number of years. The Building Commission has recently updated their original manual published as a guide to property owners to record the maintenance carried out to the building.
Essential safety measures that require review are listed on the occupancy permit or certificate of final inspection and this is an important part of any building permit to get a final inspection as soon as possible. The relevant building surveyor is the person responsible for determining what services or features in the building are applicable to be included on the occupancy permit or certificate of final inspection
The administration and enforcement has generally been on an ad hoc basis in most Councils and the degree of administration and enforcement has varied greatly.
The owner of a building is not solely responsible where exits are concerned as regulation 1218 requires the occupier to ensure that:
• All exits, and
• Any paths of travel to exits, and
• Any path of travel on the allotment from an exit to a road that is required to be provided in relation to that building or place are maintained in an efficient condition and kept readily accessible, functional and clear of obstructions so that egress from the building or place is maintained.
Specific penalties apply for failure to comply with any regulation noted.
Issues to be considered
There are three principal policy options available to Council to administer and enforce these regulations. These options are not mutually exclusive but all may be adopted in part:
A reactive policy is one where Council only enforces the regulatory requirements when it becomes aware of a specific (or potential) non compliance. The Court has determined in numerous cases (including the well known case of Pyrenees Shire Council v Day) that in circumstances where a Council becomes aware of a danger to persons or property and Council has the statutory ability to cause the danger to be abated, the community expects Councils to take such action. A failure in those circumstances could result in a finding of negligence against the Council.
All Councils should as part of their risk management process, have in place a policy that identifies the processes to followed upon becoming aware of a breach of the regulations.
A proactive policy is one where Council actively seeks out non compliance and takes appropriate action. The degree of “proactiveness” may vary. To be proactive it is necessary to:
• Identify the location of all non domestic buildings
• Have a program of inspections of those buildings
• Publicise that Council has a proactive policy and will be conducting inspections
• Determine whether those inspections are to be selective or be systematic
• Have a subsequent follow up program
• Have suitable staff to conduct those inspections
An education policy is one where Council makes available to the community sufficient information for persons to understand the legal requirements and the reason for those requirements. An education policy may be passive or active. A passive education policy is one where material is made available as handouts etc at Council offices whereas an active policy will use the media and other resources to educate as many members of the community as possible. An education policy however must be used in combination with either a reactive or proactive enforcement policy.
THE REACTIVE POLICY
Council and its Municipal Building Surveyor have responsibility for ensuring that known breaches of the Building regulations 2006 that may cause a danger or risk to persons or property in the municipal district are treated so that the danger or risk is as far as possible, minimized or removed.
Part 12 of the regulations requires that the owners of all buildings excluding domestic buildings generally, must ensure that an annual essential safety measures report is prepared in respect of any essential safety measure required to be provided to that building in the case of the first report before 13 June 2009, and in each subsequent report before each anniversary of 13 June 2009. Any breach is subject to 10 penalty units.
(Note that a breach for non compliant swimming pool is 50 penalty units.)
The reports must be prepared annually and be available at the building for inspection by the Municipal Building Surveyor or the Chief Officer on request after 24 hours notice. Council recognizes and accepts that a building that does not have the essential safety services maintained represents a danger to the occupiers. Council recognizes and accepts therefore that Council is required to take necessary action to remove or abate that danger.
Council officers, upon becoming aware of any building within the municipal district that does not have an annual report on essential safety measures, will utilise the procedure set out below to bring about compliance.
1. Upon becoming aware of a potential non complaint report the designated Council officer will write to the property owner advising that there is concern that the building at the property may not comply with the Building Regulations and that an inspection will take place at a set date. A copy of the relevant information sheets will be sent with that letter. This will take place within 7 days of being notified of the potential non compliance.
2. The designated Council officer will inspect the subject property within 28 days
3. Upon inspection , in the event there is no essential safety measures report, a Building Order for Minor Work (on the basis that the municipal building surveyor is of the opinion that the report is minor work) will be issued pursuant to section 113 of the Building Act. The building order will be in a standard form and will generally allow the owner 30 days in which to provide a current compliant report
4. In the event as determined by the municipal building surveyor, the individual circumstances warrant the provision of emergency safety measures, an Emergency Order under section 102 of the Building Act will be issued
5. Any order issued will be accompanied with information on how to comply with the order and advising as to when the next inspection will take place
6. The time for compliance under the order may be extended provided proper grounds for doing so are provided
7. At the end of the time for compliance, the building will again be inspected. If no genuine action has been taken by the owner or occupier to comply with the order, the matter will be referred to Council’s solicitor for prosecution (for breaches of Part 12 of the regulations and section 118 of the Building Act) and enforcement through section 253 of the Building Act, being an order of the Court requiring compliance. A letter will be sent to the owner advising of the referral to Council’s solicitor and providing a final opportunity to comply.
8. If at the time of that inspection the owner has attempted to comply with the building order but there are minor matters still outstanding, the owner will be advised of a time at which a further inspection will be carried out and if there is still non compliance at that time enforcement action may be taken
9. If a further inspection is required as a result of the equipment or report not being fully compliant following that further inspection, the relevant Council officer may determine to refer the matter at that time to Council’s solicitor for enforcement action
THE PROACTIVE POLICY
Council and its municipal building surveyor recognize that the obligations placed upon Council by section 212 of the building Act, being to administer and enforce the Building Regulations, requires more of Council than responding to complaints or concerns regarding non compliant essential safety measures and the annual reports.
Council could therefore determine that in addition to the introduction of a reactive policy mentioned earlier, it will adopt a proactive policy of administration and enforcement in respect of that regulation. This policy is aimed at ensuring that eventually all buildings in the municipality are compliant with the regulations.\
1. Council officers would create a database of all buildings in the municipality. The database can be created by analysing existing records and/or by the use of aerial photography. It is acknowledged that aerial may not identify all relevant buildings and existing records will also not include all relevant buildings. The database, even if not complete, is essential for:
a. Determining the number of buildings in the municipality, which is required to enable the level of risk to be assessed
b. Determining the level of resources required
c. Identifying all buildings erected before and after 1 July 1994 so as to enable if necessary an enforcement program with respect to Part 12 of the Regulations
d. Identifying the addresses for “direct mailing” campaigns
e. Determining the effectiveness of relevant policies
2. The database would be regularly reviewed and also determine an appropriate program of inspections including the numbers to be inspected per week (the inspection target) and the resources to be allocated to that work. The review will also determine the objective criteria on which the properties to be inspected are determined
3. Upon inspecting a property and identifying a non complaint system or report, the procedure set out in the “Reactive Policy” will be utilised to bring about compliance
4. Reports to Council would be prepared each month and identify
a. the number of buildings inspected
b. the number of buildings that at 1st inspection required no further action
c. the number of building orders issued
d. the number of building orders complied with in the specified period
e. the number of building orders referred for legal proceedings
f. the number of emergency orders issued
g. the number of emergency orders referred for legal proceedings
h. the number of matters outstanding
It is anticipated that the introduction of a proactive policy would require additional staff.
THE EDUCATION POLICY
Council recognises that in administering Part 12 of the Regulations it is necessary to educate all owners on their legal responsibilities to comply with the regulations and the underlying reasons for the regulations itself. Council recognizes that section 212 of the Building Act places a significant responsibility on Council to ensure that the community is fully informed.
Council adopts therefore a policy that is both passive and active in that appropriate handouts etc can be obtained at council offices in additions to Council conducting direct mail out campaigns and using the media where possible. Council will seek to ensure the maximum possible cover is being achieved.
The following is not a detailed procedure in respect of educational steps. Rather the following sets out a variety of measures that may be taken to increase community awareness. Steps 1-4 however, identify some basic steps that Council will commence with.
1. Council’s policies with respect to Part 12 of the regulations will be printed and made available in pamphlet form to the public
2. A direct mail out campaign could take place following the establishment of a database. The mail out campaign to include the information on the policy and the options available to building owners and occupiers and the consequences of non compliance
3. A series of articles on essential safety measures will be prepared for the local newspaper
4. Enforcement action will be published to create great public awareness of the consequences for non compliance
5. Customer Service Centres, libraries and other appropriate outlets would be asked to distribute (via the counter) pamphlets and other public awareness material
6. Information to be sent out with rate notices
7. Advertisements in local newspapers
8. Information and appropriate links on Council’s website
9. A report will be prepared on a yearly basis detailing all actions taken under this policy